Posts filed under 'Interviews'

On this date in 1955, Albert Pierrepoint escorted the alluringly tragic Ruth Ellis to the gallows at Holloway Prison — the last woman ever hanged in Great Britain.

The former hostess had tracked her inconstant and abusive lover David Blakely to a Hampstead pub a few months before — getting the ride, and the murder weapon, from her unrequited hanger-on Desmond Cussen — and shot Blakely dead on the street. Five bullets: the last, a coup de grace. (Another missed entirely and winged a passerby.)

A bitterly controversial case from the moment it entered the public eye, Ellis’s hanging bolstered the movement to abolish Britain’s death penalty. Juridically, however, it was resolved in the blink of an eye when a crown’s attorney cross-examined the murderess:

Christmas Humphreys: Mrs. Ellis, when you fired that revolver at close range into the body of David Blakely what did you intend to do?

Ellis: It was obvious that when I shot him I intended to kill him.

The jury, which never heard that Blakely regularly beat his killer (including once to induce a miscarriage), needed 14 minutes to convict her.

ET: I think at a certain point in time, everyone in Great Britain would have known who Ruth Ellis was, and quite a few abroad, too. How true is that still, nearing 60 years after her execution?

I think her name is still quite familiar, to be honest.

When I began researching the book, everyone I discussed it with either already knew the very basic facts of Ruth’s story, and at the very least that she was the last woman to be hanged in England. The 1985 biopic Dance with a Stranger left a big impression too, even though it wasn’t entirely faithful to Ruth’s character, making her seem much more hysterical a personality than she actually was, although I thought Miranda Richardson was brilliant in the role — as she always is!

What led you to the Ruth Ellis story?

I’ve always been interested in Ruth and that period in history — and I vividly remember going to see ‘Dance with a Stranger’ when it came out in the cinemas here. But it always struck me that her full story had never been told, particularly the last few months of her life after she shot David Blakely. And a couple of years ago there was quite an intense debate about bringing back capital punishment; Ruth’s name was always mentioned in relation to that particular argument, and I really felt it was time to explore her whole story.

What are the greatest misconceptions people have of her? Have her previous biographies and screen portrayals fed those misconceptions?

Without doubt, many people see Ruth as she was shown in ‘Dance with a Stranger’ — very screechy, out of control and violently jealous.

I think it’s true to say that she and David were both deeply jealous of each other (both giving the other reason to be so), but Ruth was not as hysterical as she was portrayed in the film. In fact, it was quite the opposite — the men were hysterical and it was Ruth who usually vented a sort of quiet fury. There is one scene in the film which shows her smashing the windows of David’s car and screaming in the street. Reading the original police statement about that night reveals a very different story; she was described as very calm and rational. There was no screaming, and although she did damage the vehicle, it was not remotely as it was shown in the film.

I think other adaptations have also done her a disservice. Ironically, probably the most accurate portrayal is in the film ‘Pierrepoint,’ where the character of Ruth appears for no more than a minute or two on screen.

I get the sense that Ruth was always running uphill against her class position, trying to climb a little higher than she could reach — right up to the end where her lover is a well-off cad and the rivals for the lover’s affection are his middle-class friends. What role did England’s class relations have in Ruth Ellis’s life and death, and in the way that others perceived her? Do they still shape the way we talk about her all these years later?

Class and politics played a huge role in Ruth’s life generally.

England was distinctly class-led at the time and when the case hit the headlines, she was described as a working-class floozie who attached herself to the upper-class David Blakely purely in order to hoist herself up the class ladder.

That couldn’t have been further from the truth; if she was only interested in using men to better herself socially, she would surely have married her sometime-lover Desmond Cussen, who was a much steadier prospect with money and property and who wanted very much to marry her. Ruth worked hard to better herself but she didn’t use the men she loved to do so.

And when it came to her trial, the class values of the time were heavy in the courtroom with the male barristers and judge and so on all very much men of the upper classes — and who viewed her accordingly. I hope we have got beyond all that nonsense now — but it does add a very distinct dimension to discussions of her case.

She was working as a hostess when she met David Blakely. What would a hostess do, who worked in this trade, and who were the clientele? Was it usual for “real” relationships to evolve? Do people still have this job in the same form as Ruth had it?

Hostessing in the clubs in which Ruth worked was quite straightforward — or it should have been, but there was Morris Conley to contend with, and he was quite a character.

Ruth’s basic job description was to look good and to chat to customers (mostly men) in the clubs, laugh at their jokes and keep them buying food and drink for as long as possible. Most hostesses were in their late teens and early twenties, working-class girls who thought the lifestyle was more glamorous than toiling in a factory or in a shop.

They were usually paid badly and relied on tips to make ends meet, but were given a dress allowance so that they could look as alluring as possible. The clientele mainly consisted of demobbed servicemen who suddenly seemed to have lost their attractiveness to women after the war — where once they had been heroes, by the late 1940s many of them were down on their luck and working as door-to-door salesmen, very lonely and eager to talk to pretty young girls about their war exploits.

The girls who worked for Morris Conley, like Ruth, were expected to sleep with the clients if that was asked of them, and often had to sleep with ‘Morrie’ and his less than respectable friends too. Many of them were very poor young women who lived in flats owned by Conley and his wife — and if they didn’t toe the line, they lost their jobs and their homes in one fell swoop.

Did real relationships evolve? Yes, they did, but very rarely. There are girls all over the world doing very similar jobs today — from London to Japan and everywhere in between too, no doubt.

You have this quote from Ruth about David Blakely: ‘I thought the world of him; I put him on the highest of pedestals. He could do nothing wrong and I trusted him implicitly.’ Ruth had an alcoholic, abusive father, and then she had two children from marriages with two different men that both fell apart — one from bigamy and abandonment, the second from alcoholism and domestic violence. Blakely himself cheated on her. Why wasn’t she more cynical about Blakely? If you take away the tragic ending to this particular relationship, was something like this a pattern she was doomed to keep repeating ad infinitum?

She loved him — it’s really as simple as that.

Although she obviously had a good degree of self-awareness and knew what David was and always would be, she truly loved him and for a time believed they had a future together. As for a pattern — I don’t know. Perhaps if she had met one good, steady man to whom she was attracted as much as she was to David, her life — and David’s too of course — might have been very different.

I’m going to phrase this inelegantly: what is the DEAL with Desmond Cussen?

Good question! I really think that he was as confused and tormented by everything that was happening as a result of Ruth’s and David’s relationship as Ruth herself.

I think he did love Ruth, and he tried hard to make things work with her, but he knew her heart was with David. His apparent lack of self-respect and backbone is baffling — quite why he kept ferrying her across London and out to Buckinghamshire in pursuit of David is a bit mystifying. I did question in the book why no one seemed to query his state of mind as much as Ruth’s — and as to whether he gave her the gun or not, knowing what she intended to do … I am sure he did, even though he must have known where it would end for Ruth herself.

Perhaps he hoped that with David out of the way, she would be reprieved and they could then have a life together. But I really don’t know!

Ruth’s legal defence was legendarily feeble. That said, I’m very interested in the barrister’s attempt to frame its insanity defense around feminine hysteria — “the effect of jealousy upon a female mind can so work as to unseat the reason and can operate to a degree in which a male mind is quite incapable of operating.” This was bound to be undermined by Ruth’s own calm and the statements about her intent to kill that she gave to police and in court. Was it the case that the law at the time didn’t have the instruments to situate Ruth’s context and state of mind, other than hysterical/not? Or could an abler barrister have presented a different story?

I think part of the difficulty is obviously that the defence of diminished responsibility was not introduced in the courts here until 1957 — largely as a direct result of this particular case.

Ruth’s lawyers tried to argue this as a defence for her to some extent, but it just wasn’t possible legally. That said, I think they served her quite badly and didn’t bring out so much that might have enabled the jury to see her crime in context. There was no mention of the abuse in her childhood, no mention of the violence she had suffered at the hands of her ex-husband and very little said about David’s own brutal treatment of her.

But Ruth herself did not seem to care much what happened in the courtroom, once it became evident that the story as she saw it — David’s friends having, in her view, deliberately destroyed the relationship between them — was not going to come to light. She gave up, and volunteered nothing that could have helped her, minimizing the violence to which she had been subjected and dismissing most of the questions put to her in a short sentence or two.

She also infamously replied to the prosecution’s question of what she intended to do when she set out to find David with the gun, “It is obvious when I shot him I intended to kill him.” That one line completely sealed her fate.

Despite all this, the public did seem to be shocked by Ruth Ellis’s hanging, and it’s supposed to have boosted the anti-death penalty campaign. If one may phrase it this way, were people shocked for the right reasons? How much did the symbolic “Ruth Ellis” that even her supporters among the general public had in view have to do with the real person as you understand her?

I think any case is always immeasurably more complex than it is presented in newspaper columns and headlines.

I think, again, the outcry at her execution has to be seen in context — people were becoming more and more opposed to the death penalty and there had been some very high-profile, contentious cases that really did cause a great deal of debate, anger, and distress: the hanging of Timothy Evans in 1950 and of Derek Bentley in 1953 for instance (both of whom were posthumously pardoned).

The fact that Ruth was a young, attractive, lively woman with two small children caused many people to question the validity of capital punishment. It was her death on the scaffold that gave the abolition movement its emotional spur.

What became of Ruth Ellis’s body after her hanging? And what became of her family and the others who were part of the story?

Ruth was buried in the confines of Holloway Prison after her execution, sharing her unmarked grave with four other women who had been hanged there. In 1971, when the prison was demolished and rebuilt, her body was released to her son for burial.

He had hoped to lay his mother to rest alongside David Blakely at the Holy Trinity churchyard in Penn but the vicar there would not allow it. Ruth was instead buried in the churchyard of St Mary’s in Amersham, a few miles away.

As to what became of her family: her son Andre (who was ten when Ruth was executed) was diagnosed with schizophrenia as a very young man and never came to terms with the loss of his mother. He committed suicide in 1982. Ruth’s daughter, Georgina, had quite a colourful life, becoming a successful model who was in the newspapers fairly often as part of the George Best ‘set.’ She married and had children and worked hard to win a posthumous pardon for her mother, of whom she spoke often. She died of cancer at the age of only 50.

As for Desmond Cussen: he emigrated to Australia and opened a flower shop there. He never married and became an alcoholic, dying in Perth on 8 May 1991 of pneumonia and organ failure following a fracture dislocation of the neck in a fall at his home.

On this date in 1921, Great Britain hanged one of its own paramilitaries in Ireland. William Mitchell was, in fact, the only member of the reviled Black and Tans executed during the Irish War of Independence.*

Was Mitchell hanged for political expediency? Did he even commit the murder for which he stood condemned?

Kelly was kind enough to talk with Executed Today about exhuming a dead soul.

ET: What led you to take an interest in this hanging?

DJK: A third cousin of mine, who shares my interest in family history research, asked me to help her verify her late father’s claim that they were related to a Black and Tan who had been hanged for murder.

I knew that the ‘Tans’ were temporary policemen recruited in England from ex-combatants of The Great War and sent to Ireland to bolster the ranks of the beleaguered Royal Irish Constabulary during the Irish War of Independence. It took me no time at all to discovered that only one Black and Tan — indeed only one member of the entire British Crown Forces — had been executed during that conflict, and that indeed he shared a surname with my cousin.

However, I could find only the briefest of mentions of him in any accounts of that bitter struggle for Ireland’s freedom. It took me and my cousin two years to track down the elusive official case papers, to establish exactly who Mitchell was, and to tell his hitherto untold story. To date however, we still have not established a firm link with my cousin’s family.

The Black and Tans are of course still notorious in Ireland and elsewhere. In this book you’re complicating their story quite a bit, making at least this one Tan a sympathetic character. What sort of audience reception has Running with Crows had? Do you find there’s a lot of resistance to the story you have to tell? For that matter, did you have any misgivings to overcome in writing it?

You are right about their notoriety. The ‘Tans’ were bored, drunk and indisciplined during the short period of their service in Ireland. They were also poorly managed and allowed to run amok, robbing and assaulting the Irish population. There is no evidence however to support the popular myth that they included a greater number of criminals than has any police force before or since. They were disillusioned and battle-hardened men who were unable to find employment back in the ‘land fit for heroes’.

Ironically, one lone reviewer of my book has accused me of not making Mitchell sympathetic enough. It was not my intention though to create sympathy for this flawed and tragic man or to turn him into a folk hero. However, whilst I do not think he was the most honourable of men, I am not persuaded he deserved to hang.

I was indeed wary of uncovering this controversial case, especially as folks in Ireland, my own relatives included, are still sensitive and emotional about the events of the 1920s. The accepted view is that the old IRA were the heroes and the ‘Tans’ were the baddies. Few people realise however that at least a quarter of the Black and Tans were Irishmen, as indeed was Mitchell. However, I am delighted to have received highly positive reviews, from ‘both sides of the divide’, that is from an IRA re-enactment group as well as from supporters and historians of the Royal Irish Constabulary. Moreover, a theatrical production company, based in the town where the murder took place, and where people still remember and sympathise with the murdered magistrate’s family, has adapted my book to a stage play, which will debut there on 15 June at the Dunlavin Arts Festival. They have also kindly invited me to hold an author talk at the festival on the 16th June.

William Mitchell was hanged for killing a magistrate named Robert Dixon. Who was Robert Dixon and why was he a target during the war?

Robert Gilbert Dixon was an Anglo-Irish gentleman; a gentleman farmer who acted as an auctioneer at the local livestock auctions and who served as a district magistrate on the local circuit. He and his wife were descended from noble and philanthropic English forebears, and indeed Robert Dixon was respected in his community for his generosity shown both to his neighbours and to the police.

During the conflict though, both magistrates and police were viewed by the Nationalists as instruments of the occupying power (the British) and as such were prime targets for assassination by the IRA. Dixon’s murder was not a political killing however. He was shot dead, and his war hero son seriously wounded, during the course of a robbery at his home.

This post-war era saw the erosion of the class system and marked the beginning of the end for ‘the old order’. Socialism was gaining popularity and the working classes were shrugging off the idea that they should ‘know their place’. The awful loss of life, mainly through mis-management of the war, meant that many had lost respect for, and indeed were resentful of, the privileged classes. A truce was now imminent in Ireland and so the ‘Tans’, who were being paid per day what the regular Irish constables earned in a week, saw their lucrative employment coming to an end, and meanwhile, in Dunlavin, the Dixon family were conspicuously wealthy …

Coming at last to the main character here, who was William Mitchell? Why was he serving in the Black and Tans, and why did he end up at the end of a noose?

Contrary to what some commentators on the conflict have written, Mitchell was not English but Irish. He was a Dublin-born former professional soldier, who had served King and Empire, both in India and in the trenches of the Western Front. He was the son of Joseph Mitchell, a London-born soldier; a respectable man who had fought in the Boer War and who had married a Dublin Protestant girl.

Another myth, that of the privileged position of those in the ‘Protestant ascendancy’ in Ireland, is dispelled by William Mitchell’s impoverished upbringing in Dublin’s Monto district, which was not only Ireland’s, but indeed Europe’s, biggest slum and red-light district. William Mitchell was a man who did not respect authority — some might say, with good reason. When two masked intruders forced their way into the Dixon household and killed the magistrate during a bungled robbery, and when one of the ‘Tans’ shot himself dead at the local barracks the following day, it was believed the dead ‘Tan’ was the shooter, and so Mitchell was then arrested as his accomplice.

This hanging occurred just as London was determining to wind things down in Ireland; later that June, Prime Minister Lloyd George proposed peace talks. As a political sop, how important domestically within Ireland was William Mitchell’s execution in June 1921? Did it even register? Had he been spared, would that have affected at all the progress towards a truce?

Ah, you have put your finger on the nub of the issue.

As ill-disciplined and unruly as the temporary constables were, there was another arm of the Black and Tans which was far more undisciplined. The Auxiliaries were demobilised officers who had been engaged ostensibly to act as an officer cadre for the temporary constables but who had instead formed themselves into hit squads and set about abducting, torturing and killing suspects without due process of law. It was the Auxiliaries who were identified with some of the worst atrocities of the conflict, including the destruction of whole villages and towns and even of the murder of the mayor of Cork.

Several Auxiliaries had been tried for murder but acquitted, usually because crucial prosecution witnesses had ‘disappeared’. One indicted auxiliary, who was a decorated war hero, but most likely also a psychopath, and was head of the self-designated ‘murder squad’ based in Dublin Castle, was facing his second murder trial. By April 1921, the world’s press were united in condemning the British administration in Ireland for letting loose this uncontrolled ‘pseudo gendarmerie’ upon the Irish population. The number of Republicans who would be executed would run to two dozen, yet thus far, no member of the British Crown Forces had been convicted for any atrocity.

The Americans and the heads of the Commonwealth nations were demanding fair play. The British public were revolted by the way the conflict was being managed and now no less a personage than King George V stepped into the arena and demanded that Lloyd George‘s government show even handedness in the way it dealt with both rebel and law enforcer. Another acquittal was fully expected in the trial of the twice-tried Auxiliary, who had carried out his grisly and murderous duty on behalf of his government, but then along came the hapless Constable Mitchell, a ‘difficult’ Irishman who had allegedly killed, not an Irish rebel, but a magistrate; an Englishman and a representative of the establishment.

The outcome in the April trial of the Auxiliary, whose defence costs (equating in today’s values to £17,600) were met from the personal funds of Hamar Greenwood, Chief Secretary for Ireland, was an acquittal, as expected.

Mitchell’s swift trial a couple of days later, by court martial (so no right of appeal) attracted little publicity. He went stoically to the scaffold, leaving behind him a 23-year-old widow and a seven-week-old baby daughter.

Political events moved fairly swiftly thereafter, so it is hard to judge whether his execution had much effect on the progress of Ireland’s achieving independence. The focus of public attention was taken up next with the internal struggles leading up to the Civil War. It seems Mitchell’s execution had little effect in the grand scheme of things.

So, did Mitchell kill the magistrate? Was he even present at the crime scene or was he a sacrificial lamb, slaughtered to offset criticism of Lloyd George’s administration in Ireland? I have presented all there is to know of this man’s life and death, as found in his military and police records, trial transcripts etcetera, and whether or not he killed the magistrate for whose murder he was hanged, or whether this was an awful miscarriage of justice, I leave for the reader to judge.

What happened to Mitchell’s family afterwards? And all these years later, what do the descendants think about their ancestor’s execution, and about the work you did with it?

I felt I could not let Mitchell’s story end with his execution. Since this is a novel closely based on a true and tragic story, I felt the reader would want to know what happened next. I know I certainly did, so I continued my research, and my narrative, to recount what had happened to many of the players in the story, and this may be found in the book’s epilogue.

Mitchell’s baby daughter lived into her nineties, always believing her father had died a hero in the course of his police service. Her respectable and courageous widowed mother did not want her little girl to grow up with any sort of stigma. Other family members knew of Mitchell’s fate however. When I tracked down his living descendants, I was cautious of the sensitivities surrounding my exposing Mitchell’s history. However, the family were keen for the full story to come out, and moreover they provided me with photographs of Mitchell, for which I am most grateful, as they enabled me to put a face to a man who hitherto had been simply a statistic.

This is not the end of the Mitchell story, however. His mortal remains (which are amongst the few still buried within the precincts of Dublin’s Mountjoy Gaol) will one day be exhumed when planned re-development of the gaol is commenced. When that day comes, my cousin and I will press for his re-interment in a local cemetery. Mitchell may not warrant the hero’s funeral accorded the Republicans who have all be disinterred from Mountjoy, but I believe he deserves at least a Christian burial.

The “Greely expedition” — so called after its commander, Adolphus Greely — was dispatched from Washington in the enthusiasm of the First International Polar Year. This was a multinational collaborative to gather scientific data about the globe’s frigid polar reaches; technically, this first IPY spanned 1882 to 1883, but the ill-starred Greely mission set out in 1881.

The mission laid down for the 25 men of the Lady Franklin Bay Expedition in 1881 was to establish a weather station, and to collect astronomical and geomagnetic data.

But long before the starving remnants of that crew put Private Henry to sudden death, they had supplanted that noble endeavor with the classic objective of polar adventure: mere survival.

Matters started promisingly enough: the ship that ferried these men to their ordeal dropped them without incident at a natural harbor in Lady Franklin Bay, where the intrepid men built Fort Conger — a sturdy frame house 65′ x 21′ x 14′. They would spend the next two years making scientific measurements, exploring, and awaiting planned resupply ships in the summers.

Ice-choked waters, however, do not open reliably to this location. The resupply missions in both 1882 and 1883 failed — and left the mission with a life-or-death choice.

Per prearranged contingency, the supply ships, should they not be able to reach Camp Conger, were to drop their provisions at a backup location. Much against his men’s will, Greely gave up Camp Conger to chase this hypothetical cache. Camp Conger was more difficult for any future ships to reach but was secure, warm enough, and blessed with seal-hunting enough to keep the team in good health.

Camp Sabine was reached only after a terrifying and near-fatal float down the coast in an ice floe (!) and it proved when they reached it a much less congenial spot for wilderness survival. The resupply missions that hadn’t reached Camp Conger had failed so thoroughly that only a very small drop had even made it to Camp Sabine. Conditions prevented the party from returning to Camp Conger or from crossing the water to another inhabited Arctic station: instead, they wintered in the mouth of hell; seal-hunting here was not favorable, and most days they were only able to supplement their dwindling cache of life-giving calories with a few shrimp and scraps of lichen peeled off the frozen rocks.

Not only ravenous hunger afflicted the party, but scurvy too, and still worse a morale collapse among party members who regarded Lieutenant Greely’s leadership very lightly. Huddled in a makeshift stone hut, three years gone from hearth and home, bored and helpless and stretching out less-than-subsistence rations as far as possible and farther, nerves began to fray … and party members began to succumb to conditions.

Charles Buck Henry did not wear well on this desperate party.

“Henry” was actually the new alias of a German immigrant formerly known as Charles Henry Buck. Buck had served time for embezzling whiskey money from a frontier cavalry company, then escaped and slew a Chinese man in a Deadwood, S.D. brawl. Henry stole from the expedition’s small store of food: he was not the only one, but he was perhaps the baldest thief and the one with the fewest redeeming features that would balance this behavior. He’d been confined in March to his sleeping bag as the closest thing to punishment that Greely could visit on him. Still, Henry stole more. Resentful comrades ostracized him, while silently sizing up the discomfiting likelihood that the hulking German would be odds-on to kill any man among them in a fair scrap.

Notwithstanding promises given by Pvt C.B. Henry yesterday [to stop stealing] he has since as acknowledged to me tampered with seal thongs if not other food … This pertinacity and audacity is the destruction of this party if not at once ended. Pvt Henry will be Shot today all care being taken to prevent his injuring any one as his physical strength is greater than that of any two men. Decide the manner of death by two ball and one blank cartridge. This order is imperative & absolutely necessary for any chance of life.

A.W. Greely
1 Lt. 5 Cav. ASO & Asst
Cmdg. L.F.B. Expd

That order Greely issued to his able assistant, Sgt. David L. Brainard. Brainard proceeded to gather two other men who contrived to “execute” Henry by a stratagem of approaching Henry armed, but casual, and distracting the unrestrained condemned man long enough to get the drop on him. They shot him dead just as Henry recognized his danger and started to lunge for a nearby axe — an incredibly chancy engagement that could easily have turned the whole expedition into a hyperboreal edition of “The Most Dangerous Game” had the mountainous Henry avoided or survived that gunshot.

Instead, his body with its fatal bullet wound was discovered by accident when the Greely party was at long last rescued later that June, and returned along with just seven** (barely) living souls out of the 25 who set sail in 1881. Those fortunate survivors — the relief mission’s commander reported them “crying like children, hugging each other, frantic with joy”† as their rescue vessel pulled into view — would be forever defined by their participation in the LFBE: toasted for their survival story while also dogged by dark rumors of cannibalism.

According to polar and maritime historian Glenn Stein, FRGS, who spent several years researching this jaw-dropping case,‡ they also closely husbanded the story of their one-time mate’s execution. Mr. Stein is also U.S. Liaison a present-day polar journey, the South 2014 Expedition, and he was gracious enough to speak with Executed Today about the LFBE’s execution.

ET: The Lady Franklin Bay Expedition was a U.S. expedition launched as part of the first International Polar Year. Could you situate the LFBE in the context of polar expeditions at this time?

GS: In the years following the 1875-76 British Arctic Expedition, it was suggested that nations should stop competing for geographical discoveries and instead dispatch a series of coordinated expeditions dedicated to scientific research. Eleven nations took part in the first International Polar Year (IPY) 1882-83, and the United States contributed two components to its first participation in an international scientific effort. In 1881, it was decided that the U.S. Army Signal Corps would establish one scientific station 500 miles from the North Pole, at Lady Franklin Bay, Grinnell Land. The other station was at Point Barrow, Alaska.

The executed man in this instance is Charles Henry, formerly known as Charles Buck. This man had a pretty disreputable history. How was he able to get on this expedition? – And, how did he become the Chicago Times correspondent for this journey? Did he actually file any stories?

Buck enlisted in the Fifth Cavalry under the alias Charles B. Henry, and wrote to Lieutenant Greely from Fort Sidney, Nebraska, in April 1881, volunteering for the expedition. Henry had the strong recommendation of his company commander, Captain George T. Price, to back him up. Greely and Price were friends, so Greely leaned toward taking Henry (who repeatedly telegraphed Greely with reminders of his availability). Another story is that Henry joined from Fort Sidney when one of the original expedition members deserted just before it was to leave. However, as far as I’m aware, there was only one desertion from the LFBE, and that person was replaced by Private Roderick R. Schneider, First Artillery.

Supposedly, since Henry was the only volunteer from the Fifth Cavalry, with a strong recommendation from post commander Lieutenant Colonel Compton, Greely decided to take him.

According to A.L. Todd’s Abandoned (1961), before joining the expedition back East, Henry “got permission to stop off in Chicago to visit relatives, and managed to make an arrangement with the Chicago Times to act as that paper’s special correspondent with the Lady Franklin Bay Expedition.” In his Ghosts of Cape Sabine, Len Guttridge (2000) made references to Henry’s newspaper articles: “One or two eventually published in the Chicago Times attested to an effective if florid command of the English language.”

This expedition lasted three years, 1881-1884, and it came to a considerable amount of grief. Could you sketch out what happened to the LFBE, and how it found itself in such a perilous situation in its last months?

By the end of August 1881, a frame house was constructed at Lady Franklin Bay and named Fort Conger. Over the next two years scientific data was collected and sledging parties were sent out, discovering many new geographic features, and setting north, east, and west “farthest” records. Because of the mismanagement of resupply expeditions from the United States, expedition members initiated a planned retreat by boat to Cape Sabine in August 1883 — but the journey turned into a nightmare. The party eventually ended up at Cape Sabine, where the men constructed a stone house for the winter, with an upturned boat for a roof. It was christened Camp Clay. Throughout the following months, the men’s spirits and energy dwindled, and constant hunger was now their companion. Worse, food was being stolen from the commissary storehouse. More than once, angry accusations flew back and forth within the party. The daily ration for each type of food was measured out to hundredths of an ounce.

The first death occurred on Jan. 18, 1884, when Sergeant William H. Cross died of starvation. In spite of the privations, only one man died that winter, even though scurvy was also present. In the spring Death returned with a vengeance.

So by the end, there’s a party near to starvation, just scraping by on a starvation diet. Naturally there’s a temptation for people to steal from the camp rations.

Henry wasn’t the only person to have stolen, but it seems from your description like he was the most distinctly resented by the rest of the party. Why was that?

During his time at Fort Conger, Henry was the originator of many profane remarks, misdeeds, and lies, so Greely and others had learned not to trust him.

Until the publication of my article, “An Arctic Execution,” LFBE historians consistently wrote that no one on the expedition knew of Henry’s criminal history as a forger, thief and accused murderer. However, I discovered within Sergeant Brainard’s unpublished daily notes that he definitely knew of Henry’s past — so who else knew as well? In consequence, although others also stole food, Henry would have been treated with less tolerance.

The specific details of the execution, and the variations on the story that are given later, are quite fascinating. The execution was ordered by the camp commander, but Henry was not confined and had no idea what was coming, because the shooting party could have been in some danger as well. Given the rough and ready circumstances, why then, does the execution party go to such elaborate ends to anonymize the shooter? There’s the “three guns, two balls” order, and then they can’t comply with that since there’s only one usable rifle, so they swear an oath among themselves never to tell.

Firing squad duty obviously preys upon the conscious and subconscious mind. It’s possible that passing the rifle around and swearing an oath replaced the anonymity provided by the “three guns, two balls” order. Keep in mind that, if the three men survived their Arctic ordeal, their participation could impact them for the rest of their lives — in and out of the Army.

This was particularly true of Sergeant Brainard, who was promised a commission by Greely. Decades after the execution, Brainard declared that “no matter what the provocation, the family of a man doesn’t want to think of him as an executioner.”

As a factual matter, it was either Brainard or Francis Long who pulled the trigger, since Frederick distracted Henry and lured Henry into the trap.

Charles Henry (left), and his two potential executioners: David Brainard (center) and Francis Long (right).

What’s left of Henry is buried in New York. If you really wanted to find out what happened, you would have to exhume the remains. Henry’s sister, Dora Buck, did request the exhumation and autopsy of his body, but these were never allowed to take place. Officially, as my article notes, Henry’s remains were buried with full military honors. What we are left with today are cemetery records, which state that Charles Henry “Died of Starvation.”

And you think Brainard carefully managed the way the dangerous execution story got out.

Brainard is like a historian’s dream. Not only was he there, not only was he a very intelligent individual — but he made a record of many things, keeping daily notes that go from start to finish.

I hand-copied each page, three years of field notes, and I referenced these in my article. Those notes represent his impressions at the time they were written, not edited versions. One crucial thing Brainard recorded about Henry was that he “is a born thief as his 7th Cavalry name will show — a perfect fiend.” That’s significant, because it doesn’t appear in Brainard’s published writings. Why omit that piece of information? There’s one reason: Brainard knew beforehand that Henry was a criminal, and if it was known Brainard possessed this information, then he may appear prejudicial regarding the decision to shoot Henry.

It starts to add up, because who had control of the expedition members’ journals on the passage home? Brainard.

Who wrote up an incomplete journal on the way home — and then, many months later, turned in writings covering several more months — but ending in March 1884? Brainard.

I’ve examined the three volumes of his original journal. Everything was very carefully written, and Brainard made sure the story he wanted told got into these journals.

And what transpired afterward?

Sgt. Brainard had been promised a commission by Greely for his leadership on the LFBE. That’s a huge deal — to get commissioned from the ranks for gallant and meritorious service, and not even in wartime, but peacetime. At that time, and for many years thereafter, he was the only living officer of the Army, active or retired, holding a commission awarded for specific distinguished services. I believe Brainard was a “good guy” and a stand-up guy, but at the same time, would he really chance ruining his opportunity to get that commission? The whole execution business could have made things really difficult for him.

When they evacuated Fort Conger, and later on were literally floating south on a piece of ice, there was almost a mutiny. The mutineers went to Brainard, saying Greely had to be relieved of command, that he was going to get everyone killed. But Brainard wouldn’t go along with it — in part, he probably realized it would destroy his future.

You have to start looking at these motivations; and it’s not an entirely unsympathetic view, because people in these positions had jobs to do.

It took a lot of pushing to get Brainard’s commission to Second Lieutenant approved, and this didn’t happen until October 1886. In 1917, when he was near the end of his career, he was actually appointed Brigadier General. Brainard went from buck private to Brigadier General!

After the LFBE’s rescue later in 1884, how was the matter of the execution handled? I’m reading between the lines here, but it seems to me that, while it was not a secret, it was also downplayed as a public matter in the immediate aftermath — Henry buried with full military honors, that sort of thing. As it emerged more publicly thereafter, was there ever any controversy or a significant sentiment that Greely had handled the situation improperly? Was there ever a question about the legality of his order?

Greely made a verbal report regarding the execution to his departmental superiors several days before Henry’s burial. He then wrote to Adjutant General of the Army R.C. Drum in August 1884, to report Henry’s execution and request that a court of inquiry be ordered or a court martial convened regarding the matter. Drum responded in November 1884 that after examining the expedition’s records, “the Secretary of War entertains no doubt of the necessity, and the entire propriety of your action in ordering the execution of Private Henry, under the circumstances and in the manner set forth in your report.”

It was understood that any military officer operating in the field possesses a fair degree of discretion in carrying out orders, and Greely had Henry executed in order to preserve lives.

Newspaper articles certainly featured Henry’s execution, but stories of cannibalism (including the condition of Henry’s remains) and the political scandal related to the mishandling of the attempted relief of Greely prior to his rescue were much more high profile stories.

You have a professional interest in polar exploration, and obviously starvation risks are endemic to these situations when matters go awry. Have you encountered any similar instances of a polar party executing one of its members for the sake of maintaining discipline?

A somewhat similar execution scenario, also an attempt to preserve the lives of starving men, had played out during Sir John Franklin’s 1819-22 Arctic Land Expedition. A detachment of four men from the expedition, including Surgeon John Richardson, discovered that their comrade, Midshipman Robert Hood, had been murdered by an Iroquois voyageur named Michel Teroahauté (also known as Ferohaite).

Under the circumstances, Richardson shot Michel to save their own lives.

How did you come to find out about this story and why did you decide to research it in such depth? Over a century on from the events themselves, what does the fate of Charles Henry have to tell us today?

I can trace back my knowledge of the execution to at least September 1988, when I bought a copy of The Polar Passion, by Farley Mowat (1967). Several years later, I acquired a large collection of items once belonging to General Brainard, which included most of his medals and orders, photographs, books, and a bone knife he brought back from the Arctic. Brainard is a fascinating historical figure and human being (I like to call him the quintessential American), and I spent a good deal of time researching and writing about his life. In the process I discovered there were many contradictory details about the execution.

On July 13, 2005, I was sitting at an outside bar in Jamaica, when it dawned on me that if I dug deep enough, I just might be able to figure out what really happened during the execution of Private Henry.

So, I began jotting down notes on three 4″ x 5″ pieces of paper — “1. Primary Question: Who was the shooter?” Of the three men involved, the evidence dictates the trigger man must have been either Brainard or Long — but in the absence of conclusive evidence we’ll probably never know which one. And I ultimately decided that’s okay, because it’s the way the three wretched souls wanted it to be on that fateful summer day in 1884, and I needed to respect their wishes.

The events during the Lady Franklin Bay Expedition, especially Charles Henry’s fate, are reminders of how crises bring out the best — and worst — in human nature. At various times in our lives we’re all confronted with personal crises: how we deal with them is what counts. Writing “An Arctic Execution” forced me to stretch my mind beyond what I thought were its limits to attempt to understand defining moments in the lives of human beings who were at the brink of oblivion.

A few books about the Greely expedition

* This expedition established a “farthest north” record: it was for the next several years the most northerly latitude that any explorer could document ever attaining.

** One of the seven retrieved by the Thetis, Sgt. Joseph Elison, was at death’s door. Wasted to 78 pounds and stricken with frostbite and gangrene that required his rescuers to amputate both hands and both legs, Elison died at sea — leaving just six survivors of the Lady Franklin Bay Expedition who would ever again set foot on American soil.

On this date in 1573, 19-year-old Frantz Schmidt — heretofore only an apprentice to his father’s craft — conducted his first solo hanging. As the body of the thief hung there, his father or perhaps another established Scharfrichter stepped forward and ritually slapped the teenage hangman three times, announcing his successful passage into the ranks of Germany’s master executioners.

“Leinhardt Russ of Zeyern, a thief. Executed with the rope at the city of Steinach. Was my first execution.” Those words begin Meister Frantz’s remarkable diary* of 361 hangings, beheadings, breakings-on-the-wheel, drownings, and burnings — as well as many other sub-capital punishments, primarily as the executioner of Nuremberg from 1578 to 1617.

Nuremberg executioner Frantz Schmidt at work in 1584.

Executioners occupied a strange outcast social niche, with charge not only of death sentences but of other dishonorable public tasks. Either as cause or consequence of this, the profession carried its own stigma for underworld less-than-respectable behavior; it was not unheard-of for a shady executioner to wind up climbing the scaffold as patient rather than hangman.

But in his 45-year career, the sober Meister Frantz operated with ahead-of-his-time dignity and sobriety, so much so that Schmidt was granted citizenship in Nuremberg and eventually had his civic honor officially restored. He freed himself and his heirs from the social pollution inherent to his life’s work.

ET: Your book is built around a sort of life’s mission by Frantz Schmidt to return himself and his family to respectable-ness. Certainly he accomplished this marvelously in the end, but I’m curious how firm do you feel is the inference that this was his specific intent from the start?

JH: I have no doubts that as a child, Frantz Schmidt was repeatedly told the tale of his family’s fall from grace, especially since he can still remember so many details even as an old man. We also know from his own words in his appeal to the emperor to restore that lost honor that his grandfather, father, and his own children all felt the sting of this stigma. Finally, the late-in-life struggles to assert that regain honor — against the challenges of his bitter successor — further underscore the centrality of this mission in Frantz Schmidt’s life.

Executioners often had a family trade at this point, but the Schmidts — specifically the father, Heinrich Schmidt — had a bizarre path into this business via the German nobility’s old prerogatives. Could you explicate the “ancient custom” that allowed Albrecht Alcibiades to force Frantz’s father Heinrich, who was not an executioner, to become one? And for that matter, the social customs that then led Heinrich’s neighbors in Hof to treat him as a dishonored untouchable after he was forced to carry out these three executions — rather than viewing him, as we might today, as himself a victim who ought to be helped to get back to his real life?

Most European laws in the early sixteenth century were customary and highly localized. Legal codification throughout jurisdictions was just getting underway. This meant that two villages only a few miles apart might have very different traditions regarding something like execution. In the larger cities, such as Nuremberg, and well organized territorial states, such as the prince-bishopric of Bamberg, standing executioners on salary were the norm. But in many of the hundreds of tiny German states during this period, execution by the victim’s oldest male relative or by another local male was still practiced.

In the case of Hof, the margrave intentionally invoked an ancient and outdated tradition because he was in a hurry to get the job done. The stigma around the job of executioner in general was, by contrast, nearly universal. There seems to have been a little less hostility in southern German states but nobody would have openly socialized with an executioner or his family. As I describe in the book, the severity of this stigma — like all social prejudices — would depend on the individual or occasion in question. So, while some people clearly had sympathy for Meister Frantz, there were still stark boundaries of propriety as to how they might express that sympathy.

Executioners had charge of a variety of disreputable tasks and spheres of civil live: refuse, prostitutes, lepers, torture, and so forth. I’m struck by the importance of Schmidt’s Nuremberg assistant, “the Lion”, in allowing the faithful executioner to (somewhat) separate some of the most visibly dishonorable tasks from Schmdit’s direct purview. Just as a realistic matter, could Frantz Schmidt have reached respectability had he himself had to handle everything personally?

You’re right, the Lion played a key role in this respect. The broader evolution of the job was also significant, from a kind of catch-all for various unpleasant tasks to a civic professional focused on interrogation and punishment. You can also see this in the clothing that executioners start to wear in the sixteenth and seventeenth centuries, usually either colorful bourgeois outfits or military garb.

Frantz Schmidt’s later entries have a great deal of detail, and you use that to tease out the executioner’s psychology, and the way he thinks about crime, sin, choice, and misfortune in his mature adulthood. It’s quite intriguing. Why, however, did Schmidt begin his journal in the first place? Is there something his shorter, earlier entries tell us about the younger man and the evolution of his views of the “poor sinners” he handled?

After a long time — and especially after I found the oldest version of the journal — I figured out that he started the journal upon his 1578 appointment in Nuremberg. This means that he reconstructed the executions of the previous five years from memory (and without dates).

Why then? The timing strongly suggested to me that he was already thinking about using the journal as a supporting document in his eventual appeal to have his honor restored.

As for changes over time, the most obvious ones are that his passages become much longer, more detailed, and more concerned with motivations and explanations than the earlier, bare-bones accounts. The main evolution in his thinking about poor sinners shows both harsher judgments of those who squandered countless chances to reform and greater pity for those who simply make a bad decision in the heat of the moment.

You have a fascinating chapter devoted to Schmidt’s sidelight as a healer, and to the important ways this practice intersected with executioners’ expertise in [harming] the body. I was amazed that Frantz Schmidt himself also took part in the era’s dissection trend. If one were a regular Nuremberger at this time, would one have any compunctions about a medical consultation with the executioner, a man one might otherwise shun? If a non-executioner physician were available too, would there be any intrinsic preference for the physician as a more respectable figure?

Yes, it’s quite a paradox. You would think that most people would be squeamish or embarrassed about consulting an executioner on medical matters, but by his own estimate Frantz Schmidt saw 15,000 patients over the course of 45 years — fifty times the number of individuals he executed. So he must have been doing something right.

This journal was (re-)discovered at an interesting point, at the beginning of the 19th century when public executions are ending but romantic German nationalism is beginning. How has “Frantz Schmidt” the present-day cultural figure been used and misused by we moderns? What’s the most important misapprehension that reading his diary ought to dispel for us?

This is really the focus of my epilogue, which discusses how “medieval” executioners have been used for the purposes of “enlightened” penal reform, nineteenth-century gothic fantasies, and in modern tourism to elicit disgust, amusement, or even the glorification of pain and suffering. My chief goal in writing the book was to get closer to understanding one such man in his own terms and in the context of his own society. To the degree that the book succeeds, parts of his world will look bizarre and alien, while other aspects (especially how people treat each other) will be strikingly familiar.

* Print-on-demand editions of Schmidt’s original diary are on the market. Although these derive from what I believe to be public domain translations, I have not been able to locate a free English copy online; German speakers can read it here.

This date in 1777 saw the public execution of “John the Painter” — a Scotsman who had been christened “James Aitken” at his birth less than 25 years before, but who had run through countless aliases in his adult life as a (mostly) petty thief.

But this man was not a hapless victim of England’s Bloody Code, although he often enough offended the capital statutes against petty property crime.

Rather, the scraggly redhead with the thick Scottish brogue was the author of a stunning act of domestic terrorism, in England, in freelance support of the rebellious American colonies an ocean away.

“So dangerous an individual to the kingdom as this man perhaps never existed,” in the judgment of the Newgate Calendar, who knew him as “John Hill” — just one of Aitken’s many aliases. “and whose confession and repentence can hardly soften the abhorrence felt on the contemplation of the extent of his crimes.”

James Aitken, aka John Hill, aka John the Painter — for this last was, unfortunately, the unprofitable occupation of his apprenticeship training — fired the Portsmouth dockyards on December 7, 1776, then followed that up with an attack on the Bristol dock and city shortly after the New Year, as well as an unsuccessful attempt to ignite the Plymouth quay.

Although he was well-read for his class, he was not ideological, not a zealot of any creed religious or secular.

He was not American himself even in the loose sense that term could hold for the immigrant proto-nation. His only brush with that land was brief and unedifying: fearing his many thefts had made London a bit too hot for him, he signed on as an indentured servant and shipped out to the colonies in 1773 and slave-like labor in the fields. He escaped his master in 1775 and immediately shipped back to Europe, leaving no evidence of any revolutionary contacts.

And he wasn’t a madman. Just lonely, as evidenced, Warner says, by the “sad and always desperate invitations” to drink with which he plied the newest of acquaintances, to their discomfort. “He asked complete strangers to drink with him because he was lonely, and loneliness overrode his reason. His invitations always came too quickly, and his conversation and his manner always just a little off.” He even invited this indiscreet attention when on the incendiary job.

James Aitken reads like an Enlightenment version of the disaffected loser “going postal” on a world that could barely see him to tread upon him. His fondest desire from childhood was that classic Scots aspiration, the army commission. The closest he came was a series of short-term army enlistments to pocket the enrollment bonus, each of which he deserted as soon as practicable. (He did dream that his terrorism spree would earn him an appointment in the Americans’ Continental Army.)

Back in Britain after his unsuccessful foray in the colonies, Aitken conceived a disordered affinity for the burgeoning patriotic cause of the colonies he had recently fled. (Warner thinks he read Thomas Paine‘s Common Sense.) Only accidentally, when he overheard boozers at an Oxford pub chatting about the importance of the dockyards to the British Navy, did the heretofore aimless Aitken animate his wanderings with a new revolutionary purpose: he, scorned nobody, could win the War of Independence by crippling these facilities.

I spent two days in the contemplation of this malicious design, and promised myself immortal honour in the accomplishment of it. I beheld it in the light of a truly heroic enterprise, such as never would have been equalled to the end of time. I was persuaded it would entitle me to the first rank in America, and flattered myself with the ambition of becoming the admiration of the world! (Source)

Aitken was not a criminal mastermind, but there was a plausibility to the plot that fluttered the Admiralty’s heart once the details emerged. The dockyards were critical. They were also — Aitken readily perceived this as he began to case them — scarcely guarded; at Portsmouth, Aitken came and went as he pleased, freely schlepping his materiel in and out. (His attempt at Portsmouth set the subsequent facilities more on guard; the man’s initial plan to hit five different dockyards in sequence would ultimately have been as self-defeating as the 9/11 hijackers planning to commandeer a different plane on five consecutive days … but this was the way Aitken had to conceive it since he lacked the charisma or leadership aptitude to form a cell of fellow-travelers for a coordinated attack.)

Before launching himself into history, Aitken made an autumn 1776 visit to Paris to call upon the American representative there, Silas Deane.

Deane’s own recounting says he was struck by the wildness of Aitken’s scheme. But he was sufficiently taken with the prospective payoff to lend it his blessing, and “sponsor” it to the extent of giving the Scotsman a little pocket money to make his way back to England. He would later defend himself against “respectable persons,” presumably British ones, who “[regard] me equally criminal with the actor.”

[S]upposing me to be the liege subject, not of Great Brittain, but of a foreign independant Nation, at the Time at War with Great Brittain, and that imagining that I had found a favorable opportunity, & met with a proper Agent to destroy, at one blow, the Fleet & armaments preparing to carry, and to spread devastation, and bloodshed in my Country, and that I improved the favorable moment, and attempted through this agency, to effect this great object; on this view of the case I am confident that every one of common sense & impartiality must acquit me, nay more though they rejoice at the defeat of the enterprize they must approve of the motives, which influenced me to engage in it, motives no less than a desire to weaken a declared Enemy, and to preserve my Country, by every means in my power, from the horrors, and distress of Fire and desolation.

… if it was a noble, and most honorable Action in Lord Rodney to defeat the Count de Grasse, would not the Man who at equal hazard of his Life, had set fire to the Count’s Squadron in Brest, & thereby have equally defeated his expedition, been entitled (at least in the Court of Common sense) to the same Honors?

This was certainly good enough to convince Aitken that he torched in the name of Liberty, and he made his way back to set his plan in motion.

After botching his first attempt at Portsmouth and getting locked in the rope house — he pounded on the door until he got someone to open up, then bluffed his way out of the situation — Aitken got the least mileage possible from a superficially successful attack.

At about 3:30 p.m. on Saturday, December 7, Aitken fired three homemade incendiaries in the rope house and slipped away in what witnesses would later reconstruct as an evident state of agitation. The flames soon gutted the brick building (the damage would eventually reckon to £20,000) but he was this close to an exponentially more impressive bit of sabotage.

To begin with, many of his matches failed to start up Aitken’s jerry-built fuses. (This is also what caused his initial arson attempt to abort.) Having been once bitten by finding himself locked into the rope house at night, Aitken made his next trip earlier in the afternoon: that ensured that plenty of dockhands would still be in the vicinity to contain the fire to the one building. It also meant that the tide was in, and the nearby brig swollen with two thousand pounds of gunpowder could be easily put out to sea and away from danger as soon as the alarm went up.*

Admiralty investigators weren’t even sure at first that it was arson. Yards in the era of wood ships and wood buildings had a lot of flammable materials lying around. Fires happened.

Aitken soon dispelled any possible confusion.

Finding the Royal Navy dockyards at Plymouth too vigilant for his machinations, Aitken settled on an ambitious, and again somewhat plausible, scheme to engulf the densely-populated port of Bristol — dockyard and city alike. Repeatedly his blazes petered out or were suppressed. They did little consequential damage, but raised a rapidly-escalating panic at revolutionary incendiaries abroad, and it did not take long to link them to Portsmouth. (Copycat attempts and crackpot anonymous letters threatening same also started popping up elsewhere in the realm.)

“I have not the least doubt that the late fires have been the effects of premeditated malice,” wrote Bristol’s M.P. — the political philosopher Edmund Burke. Naturally this only had the effect of silencing potentially considerable pro-American sentiment in Bristol and throughout the realm. Lord Germain exploited the terrorist panic to push through a February 1777 Treason Act aimed at the American colonies. It authorized detention of suspected rebels without habeas corpus protection at His Majesty’s pleasure.

Aitken himself, though, was at the end of his own fuse. At Sir John Fielding‘s urging, the Admiralty posted an eye-popping £1,000 reward for the terrorists’ (multiple attackers were presumed, owing to the quantity of fires) capture. The arsonist was in irons with a week; a gaoler had noticed him and recognized Aitken’s fit to the description of the unknown Scotsman who had been seen in the vicinity of some of these blazes which Fielding had published in his crime clearinghouse periodical, Hue and Cry.** That man rode off after the suspect and overtook him in the village of Odiham,† where an exhausted and by now fatalistic Aitken surrendered without a fight.

The mizzenmast of the docked HMS Arethusa was removed and set up on land to hang this enemy of the navy outside the walls of the damaged Portsmouth dockyard.

Upon it, they would hang their man as high as Haman: after being turned off, a team of workmen hoisted Aitken’s still-strangling body 60 feet into the air. It’s reportedly the highest gallows ever known to be erected in England, and for the benefit of anyone who didn’t get a good enough look at the spectacle, his body remained conspicuously suspended in chains for years thereafter at Fort Blockhouse, overlooking the Portsmouth harbor as it rotted away.

One might expect that a man who had turned his face against king and country to such an extent would make his end defiantly. James Aitken, once again, defies expectations here, sounding submissive and contrite in the officially reported last words.

I asked John the Painter author Jessica Warner what it was that the state hoped a prisoner like Aitken would say from the scaffold. How did condemned prisoners typically come to shape their last words in (usual) conformity to the expected models? Was it usually necessary for somebody to convince them to do so?

JW: I can only speak for eighteenth-century England. The so-called “dying speeches” of the condemned follow a pretty predictable pattern: the condemned man expresses contrition for his crime, warns others against following his example, and says, in so many words, that he is reconciled with his Creator. That’s the official version, and really two things are going on here: the prisoner is in effect upholding the state’s right to take his life while also upholding the moral order of the Ancien Regime, its laws as much as its religious teachings. I say “official” because just about all dying speeches were penned by other people, the most notorious being the succession of chaplains (ordinaries) who presided over the condemned prisoners at Newgate. It was a bit of a standing joke that dying speeches were printed before they were delivered. The irony is that shorthand was used in the eighteenth century, and so theoretically it was possible to take down exactly what prisoners said.

Popular expectations, to the extent that they can be penetrated, also expected the condemned to make a good end, a good end being measured in terms of bravery bordering on contemptuous indifference to one’s fate. It’s hard to reconcile this indifference with the regret the prisoner was supposed to express.

ET: Did the fact that Aitken was a hated state criminal, rather than an everyday felon, alter anything about the role he was expected to play in the execution ritual?

JW: I don’t think so. The various accounts of his last moments read suspiciously like those you find in other dying speeches. Given the fact that he was a Scot who had poor social skills and who was also more than a little off his head, it beggars belief that he would have performed his part so well and in so conventional a fashion. I don’t doubt, though, that he made a brave end of it.

* The original Portsmouth plan was to start with a diversionary fire in the city itself, and then burn the dockyard while fire engines were occupied with the previous blaze. Again, his imagination outstripped his reach as a lone wolf: the attempt to kindle this preliminary fire just got him run out of his boarding-house and made the landlady a later witness against him.

** For more on Fielding’s criminal investigation reforms, see this post.

On this date in 1816, four British sailors on the HMS Africaine were hanged for buggery. One other crewman suffered 200 lashes; a second, a 17-year-old sentenced to 300, had the flogging stopped at 170 stripes by a surgeon who feared the youth’s life was in danger.

The Africaine: it was a French ship originally, captured in 1810 by the British.

“The Africaine had a reputation as a ‘man-fucking ship’ long before evidence of sodomitic practices came to the attention of Captain [Edward] Rodney,”* Arthur Gilbert explained in his seminal study published in the very first (volume 1, issue 1 — 1976) edition of the Journal of Homosexuality. “There were several reports of ‘uncleanliness’ on the ship early in 1815 and, on one occasion, two seamen were punished for ‘lying on a chest together one night’.”

Late in 1815, Captain Rodney determined to crack down on the man-fucking and by threatening them with “dreadful consequences” coerced two of the crew into implicating themselves and a great many others in a buggery ring. As the Africaine made its way back to Portsmouth that autumn, it was scene to an ever-widening investigation.

Out of about 220 to 230 men aboard, some 50 members of the crew would ultimately be involved in the investigation, 23 of them charged or implicated with a wide variety of riffs on “the unnatural crime”: one Raphael Seraco was seen “with his yard actually in the posterior of John Westerman”; another sailor “placed his yard between [my] thighs and in that position effected an emission”; still another had “his yard against the backside of the boy Christopher Jay and … in quick motion as if he was committing the unnatural crime”; one of the ship’s boys “being much hurt sung out ‘Oh'” during an attempted rape; and someone had been rogered “on the flag stones of the Galley.”

While seabound sodomy was hardly unheard-of, the practitioners among the Africaine‘s crew had seemingly grown unusually (and dangerously) bold about practicing it without a modicum of concealment, “copulating in plain view like dogs.”

“God must put it into men’s heads to commit the unnatural crime of buggery,” an accused boatswain’s mate had allegedly declared. “If God was to put it into his head to fuck a man, [I] would as soon do it as fuck a woman.”

The sheer number of men rolled up in accusation and counter-accusation made across-the-board death sentences inconceivable. And among those implicated, it was extremely difficult to ascertain truth when fear and favoritism and innuendo were so thick in the air — “terrified as we were,” as one accused man later recounted, “in the idea of being prosecuted for the horrible crime imputed to us, dismayed and alarmed … in the duress of our situation, our minds and feelings every moment distorted by hope and fear without a friend to counsel us.”**

Blackstone had long before noted that the witch-hunt potential of a charge of sexual deviance demanded “that the accusation should be clearly made out.” To Rodney’s credit, he didn’t start stringing people up from the yardarm while the Africaine was at sea.

In port, Captain Rodney gave the matter over to the Admiralty with what one imagines was probably no small relief. In the grand tradition of prosecutorial discretion, the court-martial board proceeded to break down the many accused into those who would be charged and those who would cut deals to implicate the charged.

Seraco and Westerman, mentioned above, were the first sentenced to death, and then Seraco again condemned along with another partner, John Charles. (Seraco had been implicated by several people during Captain Rodney’s seaside inquiry, and Seraco in turn had accused no fewer than 14 of his mates in a vain attempt at self-protection.)

One of the other (uncharged) seamen giving against Seraco offered this juridically damning and sociologically interesting testimony:

Seraco put the question to me whether I would let him fuck me. I told him I did not much mind. He connected with me forward on the Starboard side. He entered my backside — I did the same with him three times. John Charles the prisoner was the first who mentioned the thing to me or I should never have had such a thought in my head.

Testimony of this nature, Gilbert says, posed a problem of jurisprudence: this was evidence not directly bearing on the charge that the defendant committed a specific act of sodomy with the other defendant. Legally, unless the Seraco-Charles liaison had been the charge at the bar, this testimony was extraneous. The Attorney General opined that, in a like civilian trial, he would have advised against executing a death sentence that had been obtained with such evidence — and that fact may have helped procure a pardon for a sailor named Joseph Tall.

Raphaelo Treake (Troyac), condemned with Tall, got the same favor — but Treake was immediately re-tried for a different act of buggery and re-condemned. Treake was another Italian, and Albert notes that their common crime was popularly euphemized as le vice Italien and considered a characteristically Mediterranean indulgence. “All the scandalous behavior in the Africaine has been owing to Treake and Seraco. They are the origin of the whole of it,” another crew member — a Spanish Morisco — testified.†

As January 1816 unfolded, several others went before the court martial and received prison sentences (or in the odd case, acquittal) as the great sodomy-and-uncleanliness audit proceeded.

By month’s end, it was all finished but the noosings.

On February 1, the four condemned “died truly penitent acknowledging the justice of their sentences and admonishing their shipmates to take warning from their unhappy fate not to be guilty of such detestable practices.” The ship’s clipped log entry tersely recorded that unhappy fate.

a.m. Fresh breezes and cloudy … employed getting ready for punishment. At 9 made signal [with] a gun. At 11 executed Seraco, Westerman, Charles, and Treake [for] a breach of the 29th article of war, and punished alongside [John] Parsons … with 200 lashes and [Joseph] Hubbard with 170 lashes for a breach of the 2nd article of war as sentenced by a court martial.

p.m. … sent the bodes of the executed to the hosptal. Read articles of war to the ship’s company.

On that same date as the poor buggers of the Africaine suffered their various corporal punishments, the Portsmouth commander Admiral Edward Thornborough appointed three captains to lead an inquiry into whether this floating Sodom was the fault of Captain Rodney’s soft discipline. The investigators heard good testimony all around among the ship’s junior officers to the conduct of Captain Rodney, and within days exonerated all the higher-ups, only pausing to complain that there could have been more frequent religious services and readings of the Articles of War.

And that was that … even for the ship itself. By mid-February, the HMS Africaine was being stripped down at a Thames dock. She would be officially decomissioned and broken up that year.

How exceptional were the Africaine sodomites in the British navy as the 18th century gave way to the 19th?

I’d like to start with a question about the historiography. Arthur Gilbert brought this incident to wide public view in the 1970s, and you’ve written about it much more recently. How has the scholarly sense of homoeroticism in the British navy, or in western militaries generally, evolved in the past forty years or so?

Its evolution has paralleled the gay rights movement that began with the Stonewall riots. Generally, scholars have come to realize that homoeroticism in the ranks is more than an isolated phenomenon. Most research on the matter, however, has centered on the persecution of gay service members or the rights of gays to serve openly: can it be allowed, what problems would it create, how military personnel and the public might deal with it, etc. Scholarly interest in the historical dimension of military homoeroticism has been confined to an isolated handful of researchers. Most scholars are dealing with more contemporary and more relevant aspects of the subject.

How widespread were same-sex trysts in the Royal Navy at this time?

No idea. This is, of course, what everyone wants to know, and there is simply no data that even suggests a guess let alone an answer.

What was it about the case of the Africaine that resulted in this sizable court-martial and multiple hanging, when at least some other incidents of “buggery” and “uncleanliness” over the years appear to have been dealt with quietly or discreetly ignored?

What made the Africaine different? The number and conspicuousness of the Africaine business meant it had to be dealt with. All other known incidents that produced courts martial or even summary punishment involved only pairs of mariners. Admittedly, some mariners were involved with multiple partners, but the relationships were dyadic rather than involving multiple partners simultaneously.

Do we know if men who engaged in homosexual behavior within the navy also did so on terra firma, or is that an “identity” most took on specifically to adapt to their confined all-male environment at sea? Is there any connection or analogue we can speak to between these cases and the simultaneous molly culture?

I have only run across mention of one or two navy sodomites who took their proclivities with them on land. This does not mean it didn’t happen. It is just that it is almost impossible to follow sailors once they leave their ships. They leave almost no evidence of their individual activities when not signed on board navy ships. No, I see no parallels or connections to eighteenth-century molly culture.

This is a a tangential point, but I was struck by your remark relative to the Italian Rafael Seraco that “sodomy, Popery, and Italy were inseparably linked in the minds of eighteenth-century Englishmen.” Why was that?

Sodomy, Popery, and Italy were linked in the minds of Englishmen long before the eighteenth century. Sodomy arrived in England as an Italian import according to popular views prevalent at least since the early seventeenth century, and probably earlier. The pope and the Catholic Church were also considered the handmaidens of sodomy at the same time. Part of this is due to raging anti-Catholicism in England dating from the Reformation of Henry VIII. Another part of it is the human tendency to blame the “other” for real or perceived ills: Jews, Communists, Fundamentalists, Liberals, whoever is handy. Catholics and sodomites were easy targets for Englishmen from the sixteenth century onward.

On this date in 1989, with the last words “I want to say I hold no grudges,” Carlos DeLuna died by lethal injection in Texas

At the time, not many people took seriously DeLuna’s claim that a different Hispanic man named Carlos — one Carlos Hernandez — was the man who actually slashed Wanda Lopez to death in a Corpus Christi gas station on February 4, 1983.

“I didn’t do it. But I know who did.” That’s what he’d told a police officer soon after his arrest.

A generation later, it’s increasingly clear that Carlos DeLuna really didn’t do it … and that he knew who did it, knew he was going to the gurney for the crime of a man whom the state claimed was just a “phantom” invented by the defendant. Just a few months before DeLuna went to his death, that “phantom”, still on the streets, had knifed a four-inch gash in another woman’s abdomen. Carlos Hernandez had even bragged to others that his “stupid tocayo” — namesake — “took the blame for” a murder he’d committed. (Hernandez died in 1999.)

DeLuna was arrested suspiciously hiding under a truck near the scene of a grisly knife slaying at a gas station. A Hispanic man had been reported as the suspect, and the eyewitness was able to identify DeLuna as that man, just moments after his arrest. Case closed.

Except everyone was wrong.

He was hiding because he’d been violating his parole by drinking at a strip club across the street. He chanced to look just like another Hispanic man from the area, a fellow who just happened to be a violent thug. And he didn’t have a spot of blood on him even though the murder scene looked like the set of a slasher film.

“It was an obscure case, the kind that could involve anybody,” Columbia Law Prof. James Liebman said. “Maybe those are the cases where miscarriages of justice happen, the routine everyday cases where nobody thinks enough about the victim, let alone the defendant.”

The facts of the case have been extensively documented elsewhere, including a 2006 Chicago Tribune series* and an entire 2012 issue of the Columbia University Human Rights Law Review, culmination of a years-long project organized by Liebman.

The latter investigation, complete with original source documents, video, and photographs, is preserved for public use at the magnificent Los Tocayos Carlos site. Its intensively-sourced book-length treatment comes highly recommended, but you might need to clear your schedule.

Executed Today is pleased to welcome one of the coauthors of Los Tocayos Carlos, Andrew Markquart — a 2012 graduate of Columbia Law who collaborated with Prof. Liebman on the DeLuna investigation and now practices in New York.

ET: How did you come to focus on this case, and what went into the investigation?

AM: I got involved after my first year at law school. I started out as a research assistant for Prof. Liebman, and he had been working on this project for years in one form or another when I got involved. I had already had quite a bit of interest in death penalty issues, so I jumped on it.

The initial investigation that Prof. Liebman did was back in 2004. He had done a previous study called “A Broken System” in which they found a shockingly high rate of reversals in capital cases. And basically the question that came out of that for him was, what does that mean?

Does that mean that the courts are doing their jobs and there are a lot of reversals because they’re being very diligent?

Or, is that high number indicative of some big systemic problems?

He started out looking at cases in Texas, for obvious reasons, and particularly focused on cases involving single eyewitnesses. This one came out fairly early on, but there wasn’t much about it initially to suggest this was a strong case. But Prof. Liebman was having someone going down to Corpus Christi anyway and had him check it out, and within one day this investigator was able to track down a lead and figure out exactly who this Carlos Hernandez person was who DeLuna claimed was the actual killer. From there the floodgates opened.

This case reads like something out of Dumas … your doppelganger, who looks just like you and also shares your name, commits a crime and you take the rap. Speaking as a layperson, it’s astonishing that Carlos DeLuna explicitly made the very argument you’re making, that this guy Carlos Hernandez was the real killer. But it wasn’t so much that DeLuna’s allegation was considered and rejected as that it was never taken seriously at all, even by his own defense. Why was that?

It’s a good question and it’s one of the major points we tried to make.

At first DeLuna was a little hesitant, with good reason: Hernandez was well-known in Corpus Christi; he was a terror in the town and had been known to use violence against people who threatened to expose him. Eventually the threat of execution overcame that.

His defense team did very little to research what could or would have been his saving argument, and on the flip side the prosecution said Carlos Hernandez didn’t even exist, which is just a mind-blowing claim. This guy had a rap sheet a mile long. He had been a major suspect in 1979 in another murder case involving one of the prosecutors in the DeLuna case.

The defense lawyer in that case did what DeLuna’s lawyer should have done: he called Carlos Hernandez to the stand and basically prosecuted Carlos Hernandez as his defense. He got his client off, and we’re pretty confident from our research that Hernandez was actually guilty of that murder, too.

Hernandez was definitely no “phantom”: he was known to law enforcement, known in the neighborhood. Can you explain why the prosecuting attorneys would make such a claim?

It’s hard to explain. I suspect they probably thought they had the right guy, they probably thought he was making up a bogus story … and they cut a few corners. But that’s speculation.

Your report writes, “Central to DeLuna’s obscurity was the failure of lawyers on the defense as well as the prosecution side to have the curiosity and gumption to look just an inch or two below the surface.” It seems like there just wasn’t much of any work done by any actor to pursue evidence that could defend DeLuna.

Carlos DeLuna’s defense lawyer had trouble getting any kind of funding to do investigation. And this was his first criminal case of any kind, let alone capital case.

The police only investigated for a couple of hours before turning it over to the store manager to clean up to open the next morning. It was a simple case of tunnel vision: they had arrested Carlos DeLuna, they got a quick eyewitness ID, and they thought they were done.

There’s all kinds of evidence at the scene. In the police photos, which are available at our website, there’s a footprint in blood that has to be the culprit’s shoeprint, and they never even saw it. It was that sloppy. You can also see the detective, Olivia Escobedo, literally standing on evidence — a nice metaphor for the investigation.

Yes, he did. For reasons I can’t make sense of, he either was just severely misremembering, or just made up, some story about hanging out with these girls earlier in the evening that was completely untrue. But the thing about it is that the story as he gave it didn’t even help his case. It didn’t give him an alibi. But it hurt his case, because then they could bring in these girls to testify and destroy his credibility.

It’s hard to figure out what was in his head to say that. DeLuna wasn’t the most intelligent person; his IQ tested just barely above the threshold for cognitive impairment.

The original trial was in 1983, and Carlos was executed in 1989. How representative are the circumstances of this case still, relative to new death penalty trials today or to death row prisoners whose appeals are being handled now?

“[DeLuna]’s lying. He won’t admit it. I hope this is the day he gets it. He’ll lie like he’s been lying and now he’ll have to pay for what he did to my daughter.”
-Wanda Lopez’s mother Mary Vargas, quoted in Dec. 7, 1989 Dallas Morning News

“After carefully reviewing the information recently uncovered and printed by Steve Mills and Maurice Possley in the Chicago Tribune, I am convinced that Carlos DeLuna did not kill my sister and that Carlos Hernandez was the real murderer.”
-Wanda Lopez’s brother Richard Vargas, June 2006

You see these kind of cases and issues come up even today. That’s one point we try to make: yes, this case was from 29 years ago, but a lot of things remain the same.

There was no physical evidence, despite all the blood at the scene: it was just based on eyewitnesses.** And you kind of have a casebook bad eyewitness identification. They didn’t use a lineup; it was nighttime; it was a cross-racial identification, which we know are highly error-prone; he [DeLuna] was in the squad car, at the scene, handcuffed, under a highly stressful environment. You have these kinds of show-up identifications happen all the time, all over the country. They’re rife with error.

And there’s a lot of good public defenders out there who really work hard and do good work, but also a lot of underexperienced and overburdened public defenders who are just being crushed. There’s always systemic pressure for cops and prosecutors to cut corners. I certainly don’t think the lessons of Carlos DeLuna’s case have been learned.

In your view, what are the most important of those lessons?

The fallibility of our criminal justice system. Carlos DeLuna wasn’t convicted and executed in some third world country — he was given a trial and a lawyer and appeals and all the other protections and yet he still slipped through the cracks.

And the other lesson is the widespread nature of the factors involved, like the unreliable eyewitness ID. People go to prison on that basis every day. It seems highly likely there are more Carlos DeLunas.

The way that we found this story and developed it was enormously labor-intensive. The number of man-hours that went into this, between authors, investigators, research assistants, and the whole staff of the Columbia Human Rights Law Review … you just can’t do this for every case where there’s some kind of colorable suggestion of the possibility of wrongful execution.

I’d be very surprised if there aren’t more like him.

* The Tribune series on DeLuna began on June 25, 2006 … the day before Supreme Court crank Antonin Scalia taunted in Kansas v. Marsh that there was “not one” case of a “clear” wrongful execution. “The innocent’s name would be shouted from the rooftops by the abolition lobby,” Scalia wrote.

** Eyewitness (mis)identification is also at the heart of the Ruben Cantu case, another suspected wrongful execution in Texas.

On this date in 1891, William Rose was hanged — and, when the rope snapped, hauled back up and hanged again — for murdering his feuding neighbor Moses Lufkin in Redwood County, Minn.

The scaffold botch was an apt conclusion to a deeply controversial case. Two juries hung (both leaning towards acquittal) before a third trial finally convicted Rose with the help of new eyewitness testimony that wouldn’t inspire much confidence now — and didn’t even back then.

Lufkin had been shot through a window at night — this is according to that questionable eyewitness testimony — by an unknown assailant who then fled. Connecting Rose to the murder required stitching together circumstances: Rose’s known hatred for Lufkin; the want of an alibi; the fact that he’d recently bought some ammunition. Rose protested his innocence from start to finish, and many people believed him.

In a letter published by the St. Paul Weekly Pioneer Press on Oct. 15, Rose accused that very witness of the murder: Lufkin, who was loathed by many besides Rose, had been living with the witness; said witness also knew Lufkin had cash on hand from a pension payment and the sale of his farm. Rose even repeated this accusation at the gallows.

The contentious proceeding — “one of the most remarkable cases known in the history of the State of Minnesota,” in the words of one contemporaneous report* — has been revived for a present-day audience in Patricia Lubeck’s new book, Murder in Gales: A Rose Hanged Twice. Lubeck and her friend and research assistant Michelle Gatz combed through original trial transcripts and newspaper coverage, and it left the author “pretty sure that William Rose didn’t do.”

Lubeck (author website) is the curator of Redwood County Museum, which still preserves the jail cell where Rose spent his last night on earth. She was gracious enough to share her research with Executed Today. (Other interviews with Ms. Lubeck are here and here.)

Patricia Lubeck. (Photo courtesy of Ms. Lubeck.)

ET: First off, how did you come by this story and what made you decide to devote a whole book to it?

PL: Kind of by a fluke. I came across it at the Minnesota History Center; I was helping my friend research.

When I worked at Yellow Medicine County, I researched the first man hanged in that county and became interested in early crime in southwestern Minnesota. At one point, the archivist at the Minnesota History Center brought out several boxes of court transcripts from trials. I was perusing through several cases when I came across the Lufkin vs. Rose case, and it looked very interesting.

So, William Rose and Moses Lufkin were neighbors and foes. What was the nature of their enmity — how did it get started?

They were two families who settled in southwest part of Minnesota in the late 1800s and they were friendly neighbors in the beginning. But soon petty differences arose, and the quarreling increased in bitterness from year to year.

Then a new element came into the picture when William Rose fell in love with Lufkin’s beautiful daughter Grace, and her father put a stop to the romance. This sparked the feud and lawsuits.

I think because of that feud, when Lufkin was murdered, the community kind of thought that maybe Rose did it.

The problem of the dicey sufficiency of the evidence was at the heart of the case at the time — in trial, on appeal, in the court of public opinion. Does this case have any lessons for thinking about the wrongful-conviction phenomenon here in the 21st century? Or what else do you hope the reader will take away from your book?

I guess I was just really outraged by what William Rose went through, and I felt like I was the voice for Rose. This is a story that not many people know about; it was not just a cut-and-dried case and there were a lot of factors involved. I just want people to know that there were many other possible suspects that could have done it, but that he, Rose, was the one who paid for the crime.

And I still feel that somebody has the missing piece, and somebody may come forward to exonerate Rose. I would like anyone who has information about this case to contact me by mail at: Box 52, Belview, MN 56214.

They had to try him three times to get the conviction, and the case was unusually protracted and controversial. Was there any legal chicanery involved in accomplishing the guilty verdict? By the standards of the time were there any areas where the courts clearly dropped the ball legally?

Another man who lingered alone [after Rose’s funeral] was ol’ man Slover … [who] proclaimed to those still standing at the gravesite, “Gentlemen, this is awful.”

The difference in the third trial was that Eli Slover came forward and said he was sure that it was William Rose who shot the gun. He had testified at the previous two trials that he wasn’t sure at all … and the shooter was someone he supposedly saw from the back, in the dark, so how would he be sure?

The prosecutor, Michael Madigan, was suspected of meeting with certain witnesses prior to their testimony; coaxing them and possibly even bribing them to give the testimony he wanted in order to bring in a conviction against Rose. I think that the prosecutor wanted to bring in a guilty verdict, and he persuaded Eli Slover to say that William Rose was the one that he saw that night, running away. Later on, this prosecutor got in trouble himself. He went to prison and got disbarred for perjury in 1893.

William Rose on the gallows accused Slover by name as the murderer; Lufkin had moved in with the Slovers and recently sold his farm, so the Slovers knew he had cash on him. He [Slover] is one of a number of other possible suspects I list in the book. This Lufkin guy was a bad man; he himself always stated he would die a violent death.

But at the time that William Rose was facing his trials, there was another murder that happened around the same time period in Redwood County — Clifton Holden, who killed Frank Dodge. People were shocked to have two murders in their midst, after having had a couple of other homicides in the recent past,** and there was a danger that Holden and Rose could have been lynched. At the time, the press and public sentiment cried out for a conviction, and the county was becoming burdened by the costs of trials and so a guilty verdict was found. Holden was also sentenced to hang, but at the 11th hour, Gov. Merriam reduced the sentence to life in prison.

Although memory of these sad events have faded, they were talked-about in the area for years after William Rose’s hanging. “Time and again,” said one newspaper account Lubeck quoted, “has some cute individual started the story that Will Rose was innocent.” There were even confused local rumors that Slover had made a deathbed confession from his later residence in Oregon.

“These events brought home to the people of Minnesota the the truth that the prevailing system during the 1800s, of executing criminals, was radically, morally, and terribly wrong,” Lubeck argues.

** The Marshall (Minn.) News Messenger harrumphed on Nov. 30, 1888, shortly after Rose’s avoided conviction in his first trial, “Redwood County had its fourth murder in two years, and we know of no other county where a murderer may so easily escape, even by going through the court system of Redwood.

“The Alexander murder, premeditated, easily escaped. The Gorres murder only got 6 years for manslaughter, about what a small thief would receive; the Rose murder resulted in acquittal. And now Clifton Holden has murdered a fourth victim.

“Meanwhile the taxpayers are being grieveously burdened with taxation for all these murder trials.”

ET: Just by way of orientation, what’s the baseline legend of Frankie Silver that Appalachian children learn? And how exactly did this particular hanging come to be so richly preserved in ballads and folklore and the like?

PDY: The legend is that this true story was the basis for the black blues song, Frankie and Johnny.

Frankie killed her man out of revenge cause he done her wrong. The legend is that she was the first — or only white — woman ever hanged in North Carolina, that she sang a confession from the scaffold. This was the story I heard as a child; only later would I learn that none of this was based on facts.

Most historians now think the song, Frankie and Johnny, was based on a murder in St. Louis, although several folklore collections published in the 20th century say it was based on Frankie and Charlie Silver.

What is it that drew you to this case in the first place?

Most people’s mothers tell them stories about Winnie the Pooh and, oh my, Tigger the tiger. My mother told me about a woman who cut her husband’s head off with an axe and burned his body in the fireplace.

As a writer, I’ve always been grateful for that.

Your book makes the case that she was wrongly executed, and not only that — but that “the true story, the facts … are even more interesting than the story as it has been passed down by so many ballad singers, folklore specialists, storytellers and newspaper columnists”. What’s the most important misconception people have about Frankie Silver? What surprises you most about the story?

There are many misconceptions, starting with the murder itself. There is ample evidence from the time to prove that her husband was loading his gun to kill Frankie and she picked up the axe to defend herself.

She did not sneak up on him as he lay sleeping; she killed in self defense.

She was not the first or only woman ever hanged in North Carolina, she was one of at least 15.

She did not read or sing a confession from the scaffold.

A young school teacher plagiarized a Kentucky ballad, “Beacham’s Lament,” had it printed and handed out at the hanging. It is this ballad, in which Frankie laments her guilt, that has come down as factual. However, when I was a college student, I came across 17 different letters and petitions to the governor asking for a pardon for Frankie. In these documents, it is clearly spelled out that Charlie Silver was a drunk, abusive husband and Frankie killed him in self-defense.

Hindsight is 20/20, of course … but it doesn’t seem to require hindsight to think that her lawyer would have been expected to introduce evidence of domestic violence even if that wasn’t the main thrust of his defense. Would it also have seemed that way to the reasonable barrister in the 1830s, or was there good reason for him to avoid it? Can we say that she was hanged for poor lawyering?

The late Sen. Sam Ervin was, like me, a great believer in Frankie’s innocence. A letter he wrote me explaining why is reproduced in the new edition of my book. He explained to me that at the time she was tried, the accused was deemed an incompetent witness and could not take the stand in her own defense. The law was changed in North Carolina in 1859 so that, as now, you can choose to defend yourself but you still cannot be compelled to testify against yourself.

Frankie’s lawyer, perhaps at the insistence of Frankie’s father, pleaded innocence. In other words, he could not introduce evidence of extenuating circumstances such as spousal abuse if he was saying she didn’t do it in the first place. In the book, I note that a man named Reuben Southard beat his wife to death that same year in the same county and got off with court costs. In one of the petitions, Frankie’s neighbors assert that it has often happened that a man murdered his wife with no legal consequences. In an article for his local newspaper, Ervin blamed Frankie’s lawyer for the outcome of the trial, not realizing that her lawyer was his own great great uncle.

Over the longer arc, it’s surprising to me that the claim by a woman who killed her husband that he was an abusive spouse — especially if that claim attracted a lot of support at the time — would go underground in the historical recollection of the case. In its essentials, this is one of the stock templates we have for thinking about a domestic crime. What happened in Morganton, and with the families’ descendants, over the years to shape the popular memory of the event? And does it suggest any larger lessons to you about the way we construct our histories?

The explanation is quite simple. All that survived over the years was this ridiculous “ballad,” in which Frankie confessed her guilt. She had nothing to do with that ballad.

Fayetteville Observer, July 30, 1833

But, in fact, she did write out a confession.

The confession itself has never been found but we know from other sources that it explained that she killed in self defense. The documents that detailed Charlie’s abuse and other details about the case remained hidden in the governors’ papers in the North Carolina Archives until I discovered them in 1963 when I was a student at the University of North Carolina at Chapel Hill.

In the play, a minister who is working to save Frankie from the gallows, overhears a young man singing the silly ballad. He is asked if a hundred years from now people will still be singing that ballad, not knowing what really happened. He answers: “People would rather believe a simple lie than a difficult truth.”

Compounding the historical image of Frankie has been the fact that her family was ashamed of having a convicted murderer in their midst. It was Charlie’s family that became the keeper of the legend and all its misconceptions. The Silvers kept alive the fake ballad “confession” and did everything they could to preserve the image of Charlie as a faithful husband who was killed by a spiteful wife.

Do you find that here in 2012, there are still people whose oxen are gored if your research contradicts their own version of the story — especially if you present Charlie as a violent husband?

You betcha! The Silvers to this day are rather vehement in defense of their Charlie.

It was a historic moment when I was invited to speak in the old church house near the murder scene for the Silver family reunion. In the basement of the church, they have created an extraordinary archive on the murder story and the family in general.

By this time, they have accepted that Charlie may not have been the innocent victim they’ve been told about. Many in the family are serious about their historical researches and want to know the facts. However, a contemporary Charlie Silver also said, “I just wish people would stop talking about it.”

You’re working on a program for Discovery channel’s “Deadly Women”. Does it hold any new revelations about this intriguing historical case?

The chief revelation came to me after being questioned by a very bright young woman named Colette Sandstedt for the program. She had done her homework exceedingly well. By the time we had gone over all the historical evidence I had collected over the past 50 years, I was ready for her last question: “What is the most shocking aspect of this case to you?”

I answered: “The most shocking aspect of the case is the way this poor woman has been misrepresented for almost 200 years.”

On this date in 1474, Peter von Hagenbach was tried in a remarkable judicial proceeding in the Rhine city of Breisach, found guilty, and publicly beheaded by the end of the day.

This Alsatian knight in the train of Charles the Bold had been installed by that Burgundian duke as his satrap in in the Upper Rhine, in lands that Burgundy held on lease from the Habsburgs.

He made a legendary villain of himself in the early 1470s:

His regime of arbitrariness and terror extended to murder, rape, illegal taxation and wanton confiscation of pivate property, and the victim[s] of his depredations included inhabitants of neighbouring territories as well as Swiss merchants on their way to and from the Frankfurt fair … the outrages of Hagenbach, remarkable even by the standards of the late fifteenth century, greatly contributed to forging what, until then, had been considered impossible, that is, alliances against Burgundy by all her neighbours: Austria, Berne, France, and the towns and knights of the Upper Rhine, all formerly at loggerheads with one another.

After overturning Burgundian authority in the Upper Rhine, that unique alliance aired its many grievances with Hagenbach at a unique tribunal. There, the ex-knight was prosecuted before judges drawn from the several Germanic and Swiss principalities who had allied against him.

Breisach: seems like a nice place to oppress. (cc) image from Routard5.

This unusual procedure gained a special prominence in the 20th century postwar era as historical precedent for “war crimes” prosecutions. Since that time, there’s been a going debate over just what kind of precedent it really makes.

Gordon wrote a 2012 paper re-examining the Hagenbach case attempting to reconcile both the legal and historiographical perspectives on Peter von Hagenbach.

ET: You characterize the present-day understanding of the Hagenbach case as proceeding from Georg Schwarzenberger‘s recovery of the incident further to providing legitimizing precedent for the Nuremberg tribunals. Between 1474 and World War II, did anyone think of this case as one with a wider import for jurisprudence? (And if not, do we know anything about how Schwarzenberger unearthed it?)

GG: To the extent anyone did, from my research, it would have been historians, not jurists per se. Hagenbach was the object of a fair amount of historical scholarship but that had evolved over the years. In the initial period after the trial, Hagenbach was portrayed as the quintessential bogeyman. But over the centuries, historians began to view him in a different light. By 1945, a more nuanced view of Hagenbach had been established. I have not researched Schwarzenberger’s biography in great detail. So I’m not sure how his eureka moment arose. What is clear is that the Nuremberg trial caused him to focus on Hagenbach (my sense is that Hagenbach was fairly well known in Europe — his supposed mummified head was on display in an Upper Alsace museum, for example — but given the absence of anything resembling Nuremberg before Nuremberg, people tended to ignore the details of the Hagenbach legal proceedings).

And my sense is that Schwarzenberger had an agenda — he realized the case could help legitimize what many would claim to be illegitimate ex post facto law at Nuremberg. So he relied on the earlier historical accounts of the Hagenbach case (it seems he based his seminal Manchester Guardian article primarily on the account of French historian Prosper de Barante). And thus he created a fissure between legal scholars and contemporary historians.

Who tried Hagenbach, under what authority, and how were the different interested parties formally represented? Whose idea was all this? What can we tell of the public atmosphere surrounding the trial — was there bottom-up pressure to do this?

After the League of Constance (consisting of various regional polities fed up with Hagenbach) paid off his debt for him, Archduke Sigismund of Austria resumed control over the Upper Alsace territory mortgaged to Charles the Bold. And thus Sigismund made the decision to have Hagenbach tried by the international ad hoc tribunal (another inexplicable link in the chain: Hagenbach escaped lynch-mob justice on Easter Sunday, April 10, 1474 — only thanks to Breisach resident Friedrich Kappelar’s decision to arrest him and await instructions from Sigismund).

Sigismund’s decision to convene an ad hoc international tribunal was utterly remarkable for the time. And it is not clear how or why Sigismund came up with it (although historians suggest it had something to do with the prominent position Hagenbach held as representative of the Duke of Burgundy).

Numerous representatives of sovereigns from around the region, twenty-eight in all — including sixteen knights, sat as part of this international ad hoc tribunal.

Eight of the judges were nominated by Breisach, and two by each of the other allied Alsatian and Upper Rhenanian towns [Strasbourg, Sélestat, Colmar, Basel, Thann, Kenzingen, Neuburg am Rhein, and Freiburg im Breisgau] as well as by Berne, a member of the Swiss Confederation, and Solothurn, allied with Berne.

In fact, each sovereign represented a member of the League of Constance (Berne being the only representative of the Swiss cantons).

Thomas Schutz, the chief magistrate of Ensisheim, was designated as the tribunal’s presiding judge. The nominal trial prosecutuor was the new Alsatian bailiff chosen by Sigismund to replace Hagenbach — Hermann von Eptingen. Eptingen, for his part, chose Heinrich Iselin, one of the commissioners from Basel (one of the League of Constance’s members), to present the prosecution’s case to the court. The other representative from Basel, Hans Irmy, took on Hagenbach’s representation. At some point later in the trial, Iselin resigned because, as the evidence came in, he felt the case lacked merit (and even made a motion to withdraw the charges). He was then replaced by Hildebrand Rasp. Hagenbach also requested additional attorneys and the tribunal assigned him two attorneys — one from Colmar and one from Selestat.

The trial was held in open air before the Breisach mayor’s residence and was attended by “a multitude” of people from Breisach and surrounding towns. It appears as if it were somewhat of a circus atmosphere.

Is there a degree to which the pre-modern characteristics of the belligerents — Burgundian duchies, Swiss cantons, the Holy Roman Empire patchwork — set a contradictory precedent for the postwar world?

Let me quote my paper:

Nothing in history leading up to that moment in 1474 would have suggested the remarkable course of action taken by Sigismund. It is tempting to see that decision as an historic anomaly that would not be repeated for centuries to come. But on closer inspection, Sigismund’s choice to hold a trial before an international court fits well within the historical narrative of that era.

It was a time of religious and political disintegration. The Holy Roman Empire was fading into irrelevance and the Catholic Church was on the verge of losing its European hegemony. It was the eve of the nation-state — a unique moment when the old collective structures were dying and the new ones had yet to be born. Given the interstitial political turbulence, the time was ripe for a plural approach to law enforcement in the cosmopolitan geographic center of Europe. Hagenbach’s inter-regional depredations, which helped forge a rare pan-Germanic consensus, provided the perfect forum to experiment with international justice during that fragmented time. The Westphalian order, already on the horizon, would foreclose any such future experiments until Nazi brutality put a chink in the Westphalian armor and inspired an unprecedented transnational justice operation in the wake of a truly global war. In that sense, although on much different scales, Breisach and Nuremberg have much in common. And should the nation-state ever manage to reassert its absolute supremacy again, Breisach will undoubtedly be on the lips of future international jurists seeking, as before, to end impunity at the expense of sovereignty.

You discuss a revisionist thesis about Hagenbach that essentially says he wasn’t a monster, and even that he was a forward-thinking but star-crossed reformer. Why do you think that we can, in fact, conclude that there’s something to the claim that Hagenbach was tyrannous or criminal? What do you consider the most credible charges, and the ones that to his judges would have distinguished Hagenbach from a run-of-the-mill brutal lord or military commander?

What evidence supports the view that the good burghers of Alsace were the victims of Sir Peter’s violence? Their treatment of the wayward knight after his arrest is most revealing in this regard.

While torture may have been commonplace in ordinary criminal inquisitions of the time, the severity of torment inflicted leads one to believe it was inspired by and directed at the kind of mass, depraved criminality of which Hagenbach has traditionally been accused. Significantly, in this regard, in addition to enduring horrific torture, he was stripped of his knighthood. Degradation of knighthood was exceedingly rare in the Middle Ages and reserved only for the most extreme and infamous crimes.

And there is other evidence to suggest Hagenbach’s culpability for atrocities. Most telling perhaps is the trial record itself.

Hans Irmy, it must be remembered, mounted a valiant and spirited defense to the very end. And yet the record does not reveal his even attempting to refute the charge that Hagenbach planned to exterminate the citizens of Breisach or that he murdered the four petitioning residents of Thann. At most, he offered the rejected defense of superior orders. Nor did Irmy (or Hagenbach, for that matter), directly deny the rape charges (merely objecting that taking women in this fashion was common practice and/or he had paid for services rendered). Rape, as opposed to murder, appears to have been Hagenbach’s preferred weapon of terror and atrocity.

And there is a plausible explanation for why Hagenbach would have wanted to murder the citizens of Breisach.

Hagenbach was aware of other towns that had plotted to kill him during the previous year and, when requesting entry to create defensive fortifications in anticipation of an attack by the League of Constance, he had already been denied admittance with his troops into Thann and Ensisheim. He was only able to gain entry into Breisach because his mercenaries were already present there. Given the animosity shown him in these other towns and the previous conspiracy to kill him, Hagenbach did not want to take any chances. Killing Breisach’s citizens would have permitted him to use the town as a defensive fortification without the risk of an uprising from its citizens.

Did Hagenbach slaughter thousands of innocent civilians in concentrated liquidation campaigns? There is no evidence to suggest he did — he was not a fifteenth century proto-Nazi. But the record suggests that he terrorized the local population by murdering civilians, raping numerous women and conspiring to commit a large-scale massacre in Breisach. It should be noted that the rape charges are the most persuasive as there are numerous examples and they were never directly refuted.

And Hagenbach’s back story further validates this view of him. He was the product of a Burgundian ducal culture that was steeped in and glorified violence — the reflection of its bellicose chief, Charles the Bold (known to his enemies as Charles the Terrible). The duchy was in almost a permanent state of war with one enemy or another during Charles’s reign. Charles the Bold’s Burgundy was in the practice of laying siege to towns and routinely killing civilians who resisted — Liege, Dinant, Neuss — all were subjected to horrific violence by Burgundian troops, and Hagenbach played a leading role in the first two. And within that violent culture, Hagenbach was Charles’s fiercest, most loyal lieutenant. In that regard, Sir Peter’s steadfast reliance on superior orders at trial speaks volumes.

And it is not to be overlooked that a criminal disposition was apparent even before Hagenbach cast his lot with Charles the Bold. The reported kidnapping of Marquard Baldeck, the Swiss banker for whom Hagenbach demanded ransom, is telling in that regard. As noted previously, Hagenbach supposedly demanded ransom from Baldeck’s family and the scheme was scuttled only when Philip the Good ordered Baldeck released without any extortion payment. Hagenbach also seems to have fabricated a murder plot against Charles the Bold, which he falsely pinned on a court rival to have him eliminated.

Add to this Hagenbach’s contempt for the emerging bourgeoisie and townspeople, as well as a deep animosity toward the Swiss, and his stewardship of the Upper Rhine represented the perfect storm. By 1474, he had indeed become the scourge of the Sundgau. In this regard, it is interesting to note Burgundy expert Richard Vaughan’s insight that, in fact, it may have been Hagenbach driving policy and tactics in Charles’s Alsatian territory, not the other way around:

Many of Hagenbach’s activities were undertaken at [Charles’s] express command, though often as a result of representations made to him by Hagenbach in the first place. It is possible, for example, that Charles only agreed to sign the treaty of St. Omer on Hagenbach’s persuasion. In the duke’s letters to Hagenbach of 8 August 1470 he orders him to undertake the siege and conquest of Ortenberg castle, ‘in accordance with your memorandum (advertissement)’, which seems to imply that Charles was here acting on detailed advice to take Ortenberg sent him by Hagenbach. As to other mortgaged places, the bailiff wrote to Charles describing how he had seized possession of Landser and seeking the duke’s approval, which was given on 6 January 1474. . . . On 26 December 1470 he wrote congratulating Hagenbach on taking Ortenberg . . .”

Finally, it should be pointed out that Hagenbach may be responsible for atrocities in the region, even if he personally did not commit or order or was unaware of all of them. In particular, the Picard and Wallon mercenaries he hired toward the end of his reign had a well-known reputation for being unruly, violent and hostile toward the local Alsatian population. French historian Emile Paul Toutey, for example, describes Picard soldiers engaging in mass rape of Breisach’s women toward the very end of 1473. These troops may have acted on their own initiative but Hagenbach was their superior and, at the very least, he bore command responsibility. And this may also have contributed toward the writing of Hagenbach’s black legend.

Did the Hagenbach case, in your opinion, actually break new legal ground relative to what had occurred up through 1473? Does it have any analogues you’re aware of over the next century or two, prior to the advent of the Westphalian system?

In my opinion, nothing in the historical record up through 1473 suggests the possibility (certainly not the likelihood!) of what actually took place in 1474.

Eminent German historian Hermann Heimpel does note that the contemplated trial was consistent with other legal actions in late fifteenth century Swabia. What must have seemed entirely unprecedented, though, was the make-up of the court that would sit in judgment of Peter von Hagenbach. He was not to be tried by a local judge. Instead, numerous representatives of sovereigns from around the region, twenty-eight in all — including sixteen knights — would sit as part of an international ad hoc tribunal. Nothing after this, until the Versailles Treaty’s Article 227 contemplated international ad hoc tribunal trial of Kaiser Wilhelm II post-World War I (which never took place since the Dutch refused to extradite), even suggested such a procedure.

Hagenbach tried to raise a “superior orders” type of defense, claiming that Charles the Bold had ordered him to do the nasty things that were imputed to him. The dismissal of this defense does sound pretty modern, but was it mere expedience on the part of the court since it had no way to compel evidence from Charles the Bold?

That’s a great question! I don’t think so. Why? Because Hans Irmy asked for a trial continuance to contact Charles the Bold to appear before the tribunal and corroborate Hagenbach’s claims of superior orders. The tribunal flatly denied the motion for continuance. There was not even an attempt to contact the Duke of Burgundy. Like the decision to try Hagenbach before an ad hoc international tribunal, the decision to deny the motion (and flatly reject the defense) seems nothing other than ground-breaking. In short, it was an epochal precedent.

What interpretive conflicts does this case raise for you when considering it as a legal scholar, versus as a historian? How do you think people today should understand Peter von Hagenbach’s prosecution?

Again, I quote from my paper:

My piece attempts to identify and resolve certain vertical and horizontal dissonances in Hagenbach scholarship. With respect to the former, this has amounted to an exercise in historiographic and historical archeology. The recent attention lavished on the case by international criminal law (ICL) experts is informed by a cartoonish conception of the defendant — an ultra-violent, sexually depraved monster who ran amok for years along the Upper Rhine and terrorized its population. Consistent with that interpretation, the authorities who captured and tried him engaged in a righteous and visionary justice enterprise. They came out on the winning side of a Manichean struggle that gave birth to ICL and ennobled its pedigree.

Digging deeper, though, one finds a very different narrative developed initially by nineteenth century historians and embraced by most of their twentieth century confreres. They saw Hagenbach as a would-be administrative reformer whose efforts were thwarted by xenophobic subjects and a parsimonious superior. In trying to transform a fragmented archipelago of city-states into a cohesive governmental entity, Hagenbach was despised because he threatened an ingrained culture of seigneurial privilege and parochial complacency. In his efforts to redeem property put in hock by Sigismund, he likely reinforced views of Burgundy as excessively acquisitive and bent on conquest (this was exacerbated by Charles’s own efforts to accede to the imperial throne). And in levying taxes to pay for good government, Hagenbach stoked local fears of financial servitude and ruin. But in doing the Duke’s bidding, he did not have the Duke’s support. And so he was left to flounder, his undoing hastened by his admitted crass and prurient behavior. They point out that his trial, a marketplace spectacle based on torture-extracted confessions, was little more than drumhead justice. It was akin to executing Charles the Bold in effigy. Peter von Hagenbach may not have been the most adroit governor and perhaps he did manifest contempt for the rising merchant and urban classes. But, the revisionists would contend, his final deserts were not just at all.

Digging deeper still, the bottom layer of historiography consists of the journalistic rough draft and the first generations of historians that followed. It is largely consistent with the modern ICL expert view but without the larger historical perspective and legal focus. And it is more regionally tinged and archaic. This layer is at once more reliable, given its comtemporaneity or relative proximity, and less reliable, given the inherent biases of its initial chroniclers and the disproportionate influence they exerted on sixteenth through eighteenth century historians.

But my piece demonstrates that each layer is not necessarily inconsistent with the others. In fact, there are many points of convergence. And it is there that a unified, coherent narrative can be stitched together. Hagenbach was coarse and confrontational. But he was also hardworking and loyal and wanted to do right by his master. His entire career had been built on pleasing Charles the Bold. He undoubtedly meant to reform and upgrade the administration of his Alsatian fiefdom. And consequently resentment of the bailiff grew over the years as he pushed while the Alsatians pulled. Hostilities boiled over in 1473 and matters came to a head in 1474. Charles’s loyal lieutenant with a criminal past and odd sexual predilections felt increasingly boxed in and he eventually lashed out. The almost exclusive procedural focus of his defense at trial strongly supports accounts of the resulting crime spree.

It should also be noted that modern Hagenbach scholarship is characterized by a certain horizontal dissonance as well — between jurists and historians. Given the historical points of convergence just noted, however, these two schools ought to find common ground too. Certain views of the revisionist historians concerning the Hagenbach judicial proceedings are not without merit. The Breisach ad hoc tribunal may not have been a kangaroo court but it bears no resemblance to the well-oiled machine of modern international criminal justice administration. The defendant was hideously tortured for days before the trial. He was given no notice of the charges or allegations against him in advance of the hearing. He had no time to speak with a lawyer before standing in front of the judges. The proceeding itself was held on a market square in a circus atmosphere and concluded within a matter of hours. He was not able to call his most important (and only) witness to the stand – Charles the Bold. And there is no indication of a high burden of proof or that any such burden even rested with the prosecution. The Breisach Trial was certainly not the paragon of due process.

On the other hand, this was the late Middle Ages — centuries removed from our modern notions of due process. Torture was part of standard pre-trial procedure at that time. And the trial itself seems relatively fair for that era. Hagenbach was represented by a zealous advocate in Hans Irmy and he was given two additional lawyers of his choice. There is as well a flip side to the “public spectacle” aspect of his trial — transparency. Hagenbach could have been summarily condemned in front of a secretive Star Chamber but his trial was held in public (and that was consistent with local custom). He was able to confront witnesses called against him. He had twenty-eight finders of fact (compared to twelve in the modern jury system). And Charles the Bold, his sole designated witness, was not allowed to testify because the defense of superior orders was rejected ab initio. As well, the proceedings lasted from early in the morning until late at night — which could equate to two or three modern court days. There seems to have been significant deliberation among the twenty-eight judges suggesting that a consensus was cobbled together after carefully sifting through the evidence. In an age of witch-hunts, trials by ordeal, the Star Chamber, and the Inquisition, this was an exceedingly fair trial.

And in many ways it seems inappropriate to use twenty-first century ICL terminology to analyze a fifteenth century judicial proceeding. But if that terminology is used, this piece has demonstrated that the Breisach Trial has many of the hallmarks of a modern international atrocity adjudication. As a threshold matter, regardless of anything else, it is the first recorded case in history to reject the defense of superior orders. In itself, that distinction invests the trial with universal historic importance in the development of atrocity law.